A raised eyebrow about a remark purportedly made by the Judge of the trial of Mirza Mohammad Taiyab

I read the report of the acquittal of Encik Mirza Mohammad Taiyab in Malaysiakini yesterday and its contents were the usual: (i) declarations of vindication (ii) experience of humiliation (iii) it was unfair (iv) he was set up. In short, business as usual. Then I read the Star report today (Saturday) and it basically covered the same things as Malaysiakini.

However there was one very slight but significant difference. The Star has this paragraph:

“The question of mens rea is important for all criminal cases,” he noted.

Mirza, 51, appeared expressionless upon hearing the verdict in the packed courtroom although there was loud clapping and cheering from the public gallery, causing Zainal to admonish them.

It is a gift from the court. Please let Datuk Mirza cherish this moment,” he said as Mirza nodded and smiled.

Upon hearing the judgment, Mirza immediately rushed to hug and thank his lawyers.

Then I compared this with the New Straits Times which reported that bit too in this way:

Zainal in his ruling said the prosecution had failed to pro-ve a prima facie case against Mirza.

At this point, the public gallery, which was packed with Mirza’s family members and friends, cheered causing Zainal to remind them to be silent.

It’s a gift from the court. Please let Datuk Mirza cherish the moment.”

Mirza, who was wearing a maroon baju Melayu, looked calm and expressionless when the judge made his ruling. His wife and several family members cried.

Hmmm. Honestly, I thought what they reported is what Malaysiakini would have caught. First, was that even necessary in the report unless its supposed to convey an impression. And secondly, if the Judge did say it, I don’t think judges should be saying such things. My left eyebrow certainly leaped in surprise. However, after reading the report, it should not worry to much because the Attorney General’s Chambers (AGC) and the Malaysian Anti-Corruption Commission (MACC) certainly bungled this case themselves.

They lost because they did not call the original complainant to court i.e. the guy who wrote the report, an MACC officer.

The judge also commented that the prosecution’s failure in calling the actual complainant Mohd Zamri Zainul Abidin, who is with the Malaysian Anti-Corruption Commission, had been fatal to the case.

“Zamri was the person who had gone to the clinic and was the complainant. Hence, his evidence on the investigations should have been important on what had actually transpired with the accused,” he said.

Damn right it is. This is basic law here. The complainant is one of the most fundamental witnesses in a trial, an important link in the chain of evidence. In most cases if a complaint is not proved then there is no evidence of a complaint. Case gets thrown out before the defence even begins to sweat. Why couldn’t he be there? Why bother going on with the case if they couldn’t secure him as a witness? This is a clear case of sheer incompetence on the part of both the AGC and MACC. They’ve also wasted our tax money and the witnesses, the defence counsel and the DPP’s precious time and effort on dead cases like these.

This is real.

My friends and I have been there before. There was a case where three Bangladeshi men stood accused of sodomy in the Ampang Sessions Court. I had the good fortune to do the case with two other terribly learned friends. The charge was that the complainant, an Indonesian man, had been sodomized by those three men in prison whilst they were serving time in Sungai Buloh. We had taken a few dates for the case whilst the DPP verified whether they could get the complainant. Finally, the Judge forbade anymore adjournments and insisted the prosecution proceed. So they did so with the photographer who took a few measly photographs of the alleged prison room. It was a modest size square box, dingy and depressing. The case then came to a grinding halt because the complainant wasn’t there. He was naturally the next witness in the chronology of the facts. A few dates were taken until the prosecution finally confirmed the complainant had left. This was disclosed in open court to which we requested that the case be withdrawn. As the DPP said he had no instructions to do so, he requested another date to obtain instructions. The Judge allowed the adjournment.

On the next date, he confirmed his instructions to proceed. Apparently, his instructions were since he had started the case with one witness, he now had to finish it. Understandably he was not happy either. We all knew by then the prosecution’s case was all but over. The DPP knew it. We knew it. The Judge knew it. But we just went right through the motions, because the AGC didn’t want to withdraw the case. We went through the Investigating Officer (IO), the Medical Officer (MO), and perhaps one other witness, and this still took up about 2-3 days (not full days to be fair, half days, but still!) of our, the Judge’s, the prosecution’s, the witnesses which included the MO and IO. We were all labouring to the end to which we all knew the ending. The Judge of course dismissed the case against them immediately after submissions closed. The Judge was an excellent one who even took one day off from his leave to hear the case because he was so appalled and even angry I think with the prosecution for continuing with the case and wasting his time when they knew they would surely lose. I mean, how on earth are you going to have a hope in hell of winning if the victim of the sodomy isn’t there?! No ass, no case!

That is one of my personal experiences with how the AGC exercises its discretion – with absolutely no regard to how tax payer’s money is spent, the opportunity cost of that entire wasted affair not to mention making the AGC look bad. There are many more I’m afraid. Don’t get me wrong. I want the AGC to be better, more resilient and have a better hit rate. I know how tough it is to be the prosecution – the burden of proof and the role of prosecutor is an onerous one. It bothers me that our criminal defenders are so good at their work that they can get a fair bit of those guys off even before defence is called. This is because though the cops catch the criminals (in theory-lah), the AGC is the one that puts them behind bars, legally. If the AGC fails in these very basic ways in such small cases (RM 13,860.00), how are they supposed to catch the smart, bigger, nastier, highly influential fish? Seriously. The truth is they need to get better, fast.

It is also a shame that they do not bother to try and accommodate individuals with talent to the AGC. One such talent was a friend of mine who earlier in his career considered the possibility of joining the AGC to do prosecution work. Go after the bad guys sort of thing. He even went for the interview. But failed at the hurdle when they asked if he was okay about moving out of KL, to which he was not. AGC said it was not their policy to guarantee to be only located in KL to anybody. Now he has become their formidable opponent in many matters since. If the AGC had foresight, they should have made an exception and then chuck most of the difficult cases at him as quid pro quo for being the exception.

Not that I’m shedding any tears over it.

More mind-bogglingly why prosecute him for some really, really pathetic offence?:

Suspended Tourism Malaysia director-general Datuk Mirza Mohammad Taiyab was acquitted of accepting dental treatment worth RM13,860 paid by a company director, without consideration, four years ago.

I mean this is pathetic. Give or at least show the man some respect-lah. Charge him for some gazillion dollar thing or a massacre of orphans in epic proportions, anything else more nasty but not accepting dental treatment. Whatever it is worth. With his acquittal I think he should now sue them for defamation. “How dare you insult me by alleging that I cannot afford my own dental treatment and implying that my mouth is so terrible as to warrant RMr 13,860.00 worth of dental treatment! So you are trying to say I am so corrupt that my mouth is also-lah?!” I would bellow at them if I was in his shoes.

“You know how hard it is to get to be Director-General? There’s only one in every Ministry you know?! You know how bad my kids are going to be teased about this?!” I would be raving mad-like.

We see some Ministers/ADUNs i.e. Zakaria’s palace, Khir Toyo’s palatial houses packed with cars. Check what their children drive. Check where they all go for holidays. Check all the property they have under them. Then ask whether it all adds up. How do or did they afford that on their pay?

What we need in our laws is a provision like the one Hong Kong has in its Cap 201 Prevention of Bribery Ordinance. Two that I like and want to discuss today is firstly, section 10:

(1) Any person who, being or having been the Chief Executive or a prescribed officer – (Amended 14 of 2003 s. 17; 22 of 2008 s. 4)

(a) maintains a standard of living above that which is commensurate with his present or past official emoluments; or

(b) is in control of pecuniary resources or property disproportionate to his present or past official emoluments, shall, unless he gives a satisfactory explanation to the court as to how he was able to maintain such a standard of living or how such pecuniary resources or property came under his control, be guilty of an offence.

(1A) If the accused in any proceedings for an offence under subsection (1) is or has been the Chief Executive, the court, in determining whether the accused has given a satisfactory explanation as provided in that subsection, shall take into account assets that he declared to the Chief Justice pursuant to Paragraph 2, Article 47 of the Basic Law. (Added 22 of 2008 s. 4)

(1B) The Chief Justice shall disclose to a court information about assets declared to him pursuant to Paragraph 2, Article 47 of the Basic Law if the disclosure is required by an order made by the court for the purposes of subsection (1A). (Added 22 of 2008 s. 4)

(2) Where a court is satisfied in proceedings for an offence under subsection (1)(b) that, having regard to the closeness of his relationship to the accused and to other circumstances, there is reason to believe that any person was holding pecuniary resources or property in trust for or otherwise on behalf of the accused or acquired such resources or property as a gift from the accused, such resources or property shall, in the absence of evidence to the contrary, be presumed to have been in the control of the accused. (Added 9 of 1974 s. 3. Amended 48 of 1996 s. 3)

Subsections (3) and (4) have been repealed and (5) does not concern us. What this does is basically reverse the burden of proof on the accused in relation to their “unexplained property”. I think this to be an excellent provision that should be incorporated into our legislation. This would certainly make it easier for the prosecution to bring corrupt politicians to the book. I just wonder why it’s not there still. With this, all the prosecution would have to show is that there is a prima facie imbalance between their possessions and lifestyle compared to their remunerations (or as the Ordinance calls them “emoluments”) and then it is for the defence to provide an explanation. Surely this is correct because corruption is a crime of private complicity. All the actors of the crime remain silent. Unless one squeals, the prosecution has to prove the corruption by other evidence which is quite difficult if the entire deal were oral and there was a reasonable explanation for them to behave that way. That is the difficulty. What is more, how they accumulated the money is a fact only within their knowledge. The accused would be the person best to account for it than anybody else.

Finally, section 28:

Where a person is acquitted after trial before the High Court or the District Court for an offence under Part II, the court may award costs to that person, such costs to be taxed and paid out of the general revenue.

This provision provides that where a person is acquitted of the charge, the court has power to award costs to the accused, and that I think should be a matter of course unless there are circumstances mitigating that. This should be a general provision and also teach the Attorney-General to be more careful with their cases. Over here, an accused person has to handle his own legal fees with no hope of getting anything back except his liberty upon acquittal. This surely cannot be fair. If you (AGC) have charged me and failed miserably to prove it, why should I be put to cost and expense at your blunder? I think empowering the court to award costs in that manner would be a good check on the AGC and force them to be more circumspect in their cases. This way we will have a clearer economic indicator and maybe even a rough valuation as to how much the AGC’s incompetence is costing us.

Surely, as a member of the public we are entitled to know this.


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Posts by Fahri Azzat

Fahri Azzat practices the dark arts of the law. Although he enjoys writing and reading, he doesn't enjoy writing his own little biographies of himself. Like this one. He wished somebody else would do it for him. He has little taste in writing about himself in third person. He feels weird doing it. But the part he finds most tedious is having to pad up the lack of his accomplishments, or share some interesting facts about his rather uneventful life, as if there were some who found that oh-so-interesting; as if he were some famous person, like Michael Jackson. When he writes these biographies, the thought, 'Wei, Jangan Perasaan- ah!' lights up in his head. So he usually just lists what he got involved with, positions he held and blah, blah. But this time. Right here. Right this very moment. Uhuh. This one. This one right here. He's finally telling it like it is.

Posted on 26 July 2009. You can follow any responses to this entry through the RSS 2.0.

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8 Responses to A raised eyebrow about a remark purportedly made by the Judge of the trial of Mirza Mohammad Taiyab

  1. s k nesen

    Well the AG is apparently proceeding in Anwar's sodomy case without any medical evidence of penetration….???

  2. focussed08

    "……..What we need in our laws is a provision like the one Hong Kong has in its Cap 201 Prevention of Bribery Ordinance. Two that I like and want to discuss today is firstly, section 10:

    (1) Any person who…….."

    It's a noble wish but then, almost all the top echelon of the country's administrators will be behind bars and there will be no one left to run the country!

  3. mtan

    At least we still have guys like some of you who write without favour to show them how to live right and judge justly.

    truth seeker.

  4. putra

    We all know that if you are caught, then :-

    a) wiat for cops to offer a deal. If that does not materialise then,

    b) wait for ag (govenrment prosecutor) office to offer a deal.

    The ones jailed are those who cannot afford to pay, or are not offered any deal. AG office will ask for RM60k to lose drugs related charges and cops about R5k to release a drug offender.

    That is why the criminals are laughing and the public are leaving.

  5. Radhakrishnan

    Dear Fahri

    This is a wonderful website and I kind of regret I did not start visiting it earlier.

    I mean with a title like LOYARBUROK, who would?

    Now that I have discovered what a gem of site this is, I am always eagerly awaiting the next report or analysis, either by you or the inestimable NH Chan

    I know this is not the right place to ask this question but what are the qualifications required to get into government's legal service – AG's chambers, and the Judiciary – the lowest in the chain as Judicial Commissioner?

    Would they recruit newbies who are in the mid to late forties?

    Sincerely

    S. Radhakrishnan

    • Dear Radharishnan,

      Thank you for your kind comments.

      I don't know what the qualifications are required to get into the AG's Chambers or the Judicial Legal Service. However, I think an LLB (Hons) is certainly a basic requirement. As for the position of Judicial Commissioner and/or Judge, we are not aware of what other qualities looked at in deciding one's suitability to being one aside from that specified in Article 123 of the Federal Constitution: (i) a citizen (ii) "for the ten years preceding his appointment he has been an advocate of those courts or any of them or a member of the judicial and legal service of the Federation or of the legal service of a State, or sometimes one and sometimes another." So I'm not sure about newbies. I should think only those at the peak of their powers or acknowledge doyens of their respective areas should be called to sit as Judicial Commissioners or Judges. There is no age limit but I think they would appoint people from the mid-late fourties.

  6. I'm not sure I agree that charging for trivial offences is a waste of time. Al Capone was never charged for the numerous heinous crimes he was thought to have been instrumental in, but was eventually convicted of tax fraud. (Or at least that's what I learnt from Kevin Costner and Sean Connery in the excellent movie, The Untouchables.) I thought they were taking a page out of that book, but unfortunately they forgot to read the whole book – you charge someone who is a crook for a trivial offence only if you are absolutely sure you can get him for that. Not that I am saying Mirza is a crook – given the cock up here, for all we know he might have been the one honest fella in the Ministry and was set up?

  7. The judge made the statement in jestlah because the prosecution itself is a bloody joke.

    The Macc made a fool of themselves. When a key prosecution witness who made the payment purportedly on behalf of Mirze testified in court that, when he made the payment, Mirza doesn't know about it and he also requested the clinic not to inform Mirza that payment had been made and who made the payment, then the pros'n case collapse. How to prove receipt or acceptance. To draw an analogy, would be a case of a Judge who booked a flight ticket for himself and family to London. A lawyer who had previously appeared bf the Judge and who was very grateful to the judge for some cases that he had won, without informing the Judge paid for the air tickets. And when the Judge requested for the bill the ticketing agents said, all paid for Sir, by someone. Then how to charge the Judge for accepting or receiving with or without consideration. There is nothing criminal in it except that it would be morally incorrect to accept the tickets without payment. But the Court is not there to adjudicate moral issues but crimanal acts and intent. It shows what a fool the Macc are.

    Judges are also to be blamed. They should have the balls to discharge the accused even bf the prosecution had concluded its case when they find the charges to be groundless. I am surprised that the Judge in the Mirza case had allowed the prosn' to complete its case and waste everybody's time.

    i don't think they lost because they don't call the person who wrote the rpt. The judge is clearly wrong on that. Reports written by police or Macc officers themselves are always inadmissible